Gibson v. Kilpatrick
| Decision Date | 11 December 2014 |
| Docket Number | No. 12–60905.,12–60905. |
| Citation | 773 F.3d 661 |
| Parties | Anthony GIBSON, Plaintiff–Appellee Cross–Appellant v. Jeffrey KILPATRICK, in His Individual Capacity, Defendant–Appellant Cross–Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Jim D. Waide, III, Esq., Waide & Associates, P.A., Tupelo, MS, for Plaintiff–Appellee Cross–Appellant.
Gary Erwin Friedman, Esq., Gregory Todd Butler, Esq., LaToya Cheree Merritt, Phelps Dunbar, L.L.P., Jackson, MS, for Defendant–Appellant Cross–Appellee.
Appeals from the United States District Court for the Northern District of Mississippi.
Before STEWART, Chief Judge, KING, and PRADO, Circuit Judges.
ON REMAND FROM THE UNITED STATES SUPREME COURT
The Supreme Court has vacated the judgment in this case and remanded for further consideration in light of Lane v. Franks, 573 U.S. ––––, 134 S.Ct. 2369, 189 L.Ed.2d 312 (2014). While serving as the Chief of Police in Drew, Mississippi, Anthony Gibson reported Mayor Jeffrey Kilpatrick to outside law enforcement agencies for misuse of the city gasoline card. Months later, Kilpatrick began issuing written reprimands to Gibson for a panoply of alleged deficiencies. Gibson subsequently filed a lawsuit alleging unconstitutional retaliation as well as state tort law claims. Kilpatrick moved for summary judgment, raising the defense of qualified immunity and arguing that the state tort law claims were barred because Gibson failed to comply with state notice requirements. The district court denied the motion with respect to qualified immunity, but granted it with respect to the state tort claims. Kilpatrick now brings this interlocutory appeal of the district court's order denying qualified immunity, and Gibson cross-appeals the district court's dismissal of one of his tort claims. Kilpatrick moves to dismiss the cross-appeal for lack of jurisdiction. We hold that Kilpatrick is entitled to qualified immunity and reverse the district court's order to the extent that it denied qualified immunity. Additionally, because we lack jurisdiction to hear Gibson's cross-appeal, we grant Kilpatrick's motion to dismiss the cross-appeal.
In 2006, Anthony Gibson applied to be Chief of Police in Drew, Mississippi. Mayor Jeffrey Kilpatrick opposed Gibson's application and supported another candidate. The city's Board of Aldermen (“Board”) rejected Kilpatrick's recommendation and hired Gibson in August 2006. As Chief of Police, Gibson reported directly to Kilpatrick and the Board.
Sometime within the first four months of Gibson's employment, a subordinate at the police department informed Gibson that Kilpatrick was misusing the city gasoline card to fuel his vehicle for personal trips. Gibson confidentially reported his suspicions to the Federal Bureau of Investigation (“FBI”), Drug Enforcement Agency (“DEA”),1 Mississippi Office of the State Auditor (“OSA”), and Mississippi Attorney General's Office. His reports to the FBI and DEA were through contacts with whom he had worked in an official capacity on prior occasions. The OSA initiated an investigation, and Gibson worked with Investigator Karen Swain to assist in the OSA's efforts. Because Kilpatrick had to come to the police department to obtain the gasoline card, Gibson was able to monitor Kilpatrick's activities. Gibson instructed two police dispatchers to make log entries every time Kilpatrick asked to use the card, and he ordered a police officer to observe Kilpatrick following receipt of the card. Gibson and Swain also directed the city clerk to monitor receipts from Drew's gasoline provider to compare them with the information recorded in the log. In September 2008, the investigation concluded, finding that Kilpatrick had misused the city gasoline card, and the OSA ordered Kilpatrick to repay approximately $3,000 to the City of Drew for his unauthorized use of the card.
Approximately nine months after the conclusion of the investigation, Kilpatrick began entering written reprimands into Gibson's personnel file. The first reprimand came on June 8, 2009, and the reprimands continued for over two years.2 In addition to the reprimands, Kilpatrick recommended Gibson's termination to the Board on several occasions, including for insubordination, lack of visibility in the community, and failure to work an adequate number of hours.
On December 1, 2010, Gibson brought this action in federal court against Kilpatrick in his individual capacity, alleging violations of his First Amendment right to free expression under 42 U.S.C. § 1983, and malicious interference with employment and intentional infliction of emotional distress under Mississippi law. Less than a year later, on October 5, 2011, the Board voted to terminate Gibson's employment. Gibson subsequently amended his complaint to add the City of Drew as a defendant, alleging that the city violated his First Amendment rights in retaliation for his filing suit against Kilpatrick.
Kilpatrick and the City of Drew jointly moved for summary judgment on Gibson's First Amendment and state law claims. Kilpatrick asserted that he was entitled to qualified immunity as to the First Amendment claim because Gibson's speech was not constitutionally protected nor were Kilpatrick's actions objectively unreasonable. As for the state law claims, Kilpatrick and the City of Drew argued that Gibson failed to file a notice of claim in compliance with the Mississippi Tort Claims Act (“MTCA”), so the claims were barred. See Miss.Code Ann. § 11–46–11 (2013). The court “reserved judgment” as to whether Kilpatrick had violated Gibson's constitutional rights and whether Kilpatrick was entitled to qualified immunity; however, it entered judgment in the defendants' favor with respect to the state law tort claims. Kilpatrick moved for reconsideration of his qualified immunity defense, and the court held that Kilpatrick was not entitled to qualified immunity because Gibson's speech was protected under the First Amendment and the right was clearly established.
Kilpatrick timely appealed the district court's summary judgment and reconsideration orders. Gibson timely cross-appealed the district court's dismissal of his state law tort claim for malicious interference with employment. Kilpatrick moved to dismiss the cross-appeal for lack of jurisdiction, and the court ordered that motion to be carried with the case.
After we issued our opinion in this case, Gibson v. Kilpatrick, 734 F.3d 395 (5th Cir.2013), the Supreme Court decided Lane, vacated our judgment, and remanded for further consideration in light of that opinion, Gibson v. Kilpatrick, ––– U.S. ––––, 134 S.Ct. 2874, 2874, 189 L.Ed.2d 829 (2014) (mem.).
Typically, a party may not immediately appeal a district court's decision to deny summary judgment, but the denial of a motion for summary judgment based on qualified immunity is a collateral order capable of immediate review. Brown v. Strain, 663 F.3d 245, 248 (5th Cir.2011). This court has jurisdiction over such an order only “to the extent that the district court's order turns on an issue of law.” Kovacic v. Villarreal, 628 F.3d 209, 211 (5th Cir.2010). We may not review a district court's decision to deny qualified immunity based on evidentiary sufficiency on an interlocutory appeal, because such a determination is not considered a “final decision.” Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) ; Gobert v. Caldwell, 463 F.3d 339, 344 (5th Cir.2006). This court “consider[s] only whether the district court erred in assessing the legal significance of the conduct that the district court deemed sufficiently supported for purposes of summary judgment.” Kinney v. Weaver, 367 F.3d 337, 348 (5th Cir.2004) (en banc). “Where factual disputes exist in an interlocutory appeal asserting qualified immunity, we accept the plaintiffs' version of the facts as true.” Id. “In reviewing the district court's conclusions concerning the legal consequences—the materiality—of the facts, our review is of course de novo. ” Id. at 349.
To rebut a defendant's qualified immunity defense, the plaintiff must show: “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al–Kidd, ––– U.S. ––––, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011) (citation omitted). A court may consider either prong of the qualified immunity analysis first. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). We begin and end by addressing the second prong—whether Kilpatrick's reprimands violated Gibson's clearly established First Amendment rights.
Determining whether a public employee's speech is protected by the First Amendment involves a two-step inquiry. Lane v. Franks, 573 U.S. ––––, 134 S.Ct. 2369, 2378, 189 L.Ed.2d 312 (2014). The first step requires the court to determine whether the employee spoke as a citizen on a matter of public concern. Id. If he did, the second step requires the court to determine whether the government employer had a constitutionally sufficient justification for punishing the employee for his speech by balancing the interest in allowing the speech against the interest in penalizing it. Id.; Pickering v. Bd. of Educ. of Twp. High School Dist. 205, Will Cnty., 391 U.S. 563, 574–75, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) ; Connick v. Myers, 461 U.S. 138, 150–51, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983).
The first step of the analysis subtly sets out two predicates for public-employee speech to receive First Amendment protection; the speech must be made as a citizen and on a matter of public concern. It is the first requirement—that the public employee speak as a citizen—that is dispositive here.
In Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), the Supreme Court made clear that the “as a citizen” requirement draws a distinction...
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